Punitive damages award significantly reduced

Where a jury found numerous defendants liable for their conduct planning and participating in the Unite the Right rally in Charlottesville, and awarded a total of $24 million in punitive damages, the punitive damages were reduced to $350,000. The statutory cap applies to the action as a whole, and not on a per-plaintiff basis.

Background

A jury found defendants liable for their conduct planning and participating in the Unite the Right rally in Charlottesville, including finding all defendants liable for Virginia state law civil conspiracy; finding Jason Kessler, Richard Spencer, Elliott Kline, Robert “Azzmador” Ray, Christopher Cantwell and James Alex Fields Jr., liable for racial, religious or ethnic harassment or violence and finding Fields liable for assault and battery and intentional infliction of emotional distress. Defendants have filed numerous post-trial motions.

Kessler, Damigo and Evropa

Jason Kessler, Nathan Damigo and Identity Evropa argue that plaintiffs failed to prove their participation in any unlawful conspiracy. Kessler separately contends that plaintiffs’ evidence of his activities at the torch march established nothing more than his “engaging in First Amendment protected expressive activity.”

The court concludes that substantial evidence and a legally sufficient evidentiary basis supported the jury’s verdict finding Kessler, Damigo and Identity Evropa liable for Virginia state law civil conspiracy. The court also concludes that substantial evidence and a legally sufficient evidentiary basis supported the jury’s verdict finding Kessler liable for racial, religious or ethnic harassment or violence in violation of Virginia Code § 8.01-42.1.

Christopher Cantwell

Plaintiffs introduced more than substantial evidence to support the jury’s verdict finding Cantwell liable for Virginia state law civil conspiracy and committing religious or ethnic harassment or violence. Moreover, Cantwell has not shown he is entitled to directed verdicts on either Counts One or Two.

Cantwell raises a cursory challenge to this court’s refusal to strike a juror for cause. While Cantwell has argued that juror 220’s “pro-Antifa views” meant that he had “an extremely favorable view of a group that hunts the defendants like dogs in the street,” the juror expressed no such thing. And defendants ultimately used a peremptory strike to remove the juror from the panel, and Cantwell has not even attempted to argue, let alone demonstrated, that “using a peremptory challenge on [juror 220] prevented them from challenging another undesirable juror.”

While Cantwell also raises a number of challenges to the court’s jury instructions, the court finds each argument to be without any merit. Cantwell also raises a host of challenges to the court’s evidentiary rulings. None have merit. Finally, the court rejects Cantwell’s argument that his trial was “unfair” because he was incarcerated from January 2020 until trial, and afterward.

Richard Spencer

Richard Spencer also challenged the jury’s verdict finding him liable for Virginia state law civil conspiracy and for racial, religious or ethnic harassment or violence, in violation of Virginia Code § 8.01-42.1. The court rejects Spencer’s arguments as the jury’s verdicts against him were lawful and supported by more than substantial evidence.

The League of the South, Michael Hill and Michael Tubbs

The jury found the League of the South, Dr. Michael Hill and Michael Tubbs liable for Virginia state law civil conspiracy in Count Three. However, the jury did not reach a verdict on Counts One and Two. In their post-trial motions, the League of the South defendants have moved for directed verdicts on Counts One, Two and Three. The court concludes that the League of the South defendants are not entitled to a directed verdict on any count, and that substantial evidence supported the jury’s finding that they were liable on Count Three.

Damages

On Count Three, for Virginia state law civil conspiracy, the jury awarded punitive damages of $500,000 against each individual defendant, and $1,000,000 against each organizational defendant. On Count Four, for racial, religious or ethnic harassment or violence, in violation of Virginia Code § 8.01-42.1, the jury awarded $200,000 in punitive damages each against Kessler, Spencer, Kline, Ray and Cantwell.

On Count Five, for assault and battery, the jury awarded punitive damages of $6,000,000 against Fields. And on Count Six, for intentional infliction of emotional distress, the jury rendered an award of another $6,000,000 in punitive damages against Fields. Defendants contend that Virginia law caps punitive damages in any action to no more than $350,000, even if, as here, there are multiple plaintiffs in the same action.

Plaintiffs argue that the court should not apply Virginia’s statutory cap on punitive damages “to defendants’ egregious misconduct.” The Fourth Circuit has rejected a similar contention that Virginia’s cap on punitive damages “should apply only in unintentional tort cases.”

Plaintiffs argue that, even if Virginia’s statutory cap applies, it applies “on a per-plaintiff basis.” The court disagrees. Considering the language of Virginia’s statutory cap, the Fourth Circuit’s precedent and lacking subsequent precedent from the Supreme Court of Virginia or the Fourth Circuit clarifying the application of the statutory cap in multiple-plaintiff cases, the court concludes that Virginia’s $350,000 statutory cap on punitive damages applies to the action as a whole, and not on a per-plaintiff basis. Accordingly, the jury’s punitive damages award will be reduced to $350,000 against all defendants found liable on Counts Three, Four, Five and Six.

Defendants also argue that the punitive damages award violates their right to due process under the Fourteenth Amendment. The court disagrees, and instead holds that the jury’s punitive damages award capped pursuant to Va. Code § 8.01-38.1 at $350,00 violates no defendant’s due process rights.

Defendants also argue that Virginia law does not permit any punitive damages award as against them, or that, if it does, the court should reduce the punitive damages award as excessive under Virginia law. The court disagrees. The award of punitive damages reduced to the Virginia statutory cap is not excessive under Virginia law.

Defendants’ post-trial motions granted in part, denied in part.

Sines v. Kessler, Case No. 3:17-cv-00072, Dec. 30, 2022. WDVA at Charlottesville (Moon). VLW 022-3-565. 89 pp.